Testing the waters for possible candidacy
Before deciding to campaign for federal office, an individual may want to "test the waters" to explore the feasibility of becoming a candidate. For example, an individual may want to conduct polls or travel around the state or district to see if there is sufficient support for their candidacy.
An individual who merely tests the waters, but not to campaign for office, does not have to register or report to the FEC. This is the case even if the funds raised and spent to test the waters exceed the $5,000 candidate registration threshold. Nevertheless, all funds raised and spent during the testing the waters period must comply with the Federal Election Campaign Act’s (the Act) contribution limits and prohibitions.
Once an individual begins to campaign or decides to become a candidate, the testing the waters period ends, and funds that were raised or spent to test the waters apply to the $5,000 threshold for qualifying as a candidate. After exceeding the threshold, the individual must register with the FEC as a candidate, designate and register a principal campaign committee, and begin to file reports. The first report must include all activity that occurred during the testing the waters period.
Testing the waters vs. campaigning
An individual may carry out a variety of activities to test the waters. Examples of permissible testing the waters activities include conducting polling, traveling and making telephone calls to determine whether the individual should become a candidate.
Certain activities, however, indicate an individual has decided to become a candidate and is no longer testing the waters. In that case, once the individual has raised or spent more than $5,000, the individual must register as a candidate. As mentioned earlier, when an individual decides to run for office, funds that were raised and spent to test the waters apply to the $5,000 threshold.
Campaigning (as opposed to testing the waters) is apparent, for example, when:
- Make or authorize statements that refer to themselves as candidates ("Smith in 2024" or "Smith for Senate");
- Use general public political advertising to publicize their intention to campaign;
- Inform the media (either directly or through an advisor) that they will announce their candidacy on a certain date;
- Raise more money than what is reasonably needed to test the waters or funds to be used after candidacy is established;
- Conduct activities over a protracted period of time or shortly before the election; or
- Take action to qualify for the ballot.
Also, once an individual files a Form 2 (Statement of Candidacy), they are no longer considered to be “testing the waters” and must file Form 1 (and subsequently file financial reports).
Contributions limits and prohibitions
Funds raised to test the waters are subject to the Act’s contribution limits and source prohibitions.
The limits apply, for example, to:
- Gifts of money, goods, and services;
- Loans (except bank loans);
- Certain staff advances until repaid;
- Endorsements and guarantees of bank loans; and
- Funds given or personally loaned to the individual to pay for their living expenses during the testing the waters period.
In observing the law’s prohibitions, the individual may not accept money from foreign nationals, federal government contractors, corporations or labor organizations. (However, funds from a separate segregated fund–also called a PAC–established by a corporation or labor organization are permissible.)
An individual who tests the waters must keep financial records. If the individual becomes a candidate, the money raised and spent to test the waters counts toward the $5,000 registration threshold and must be reported by the campaign.
Separate bank account
Another consideration, though not a requirement, is the segregation of testing the waters funds from personal funds. The FEC recommends that the individual set up a separate bank account for the deposit of receipts and the payment of expenses. If the individual later becomes a candidate, a campaign account must be established to keep the campaign funds separate from the individual’s personal funds.
Mr. Jones is interested in running for a seat in the U.S. House of Representatives but is unsure whether he has enough support within his district to make a successful bid. He therefore accepts up to $2,900 from each of several relatives and friends and raises $30,000. He uses the money to pay for an opinion poll. He sees that good records are kept on the money raised and spent in his testing the waters effort. The poll results indicate good name recognition in the community, and Jones decides to run.
By making this decision, Jones has crossed the line from testing the waters to campaigning. The funds he raised earlier now automatically become contributions, and the funds he spent, including the polling costs, are now expenditures. Since his contributions or expenditures exceed $5,000, he becomes a candidate and must register with the FEC. The money raised and spent for testing the waters must be disclosed on the first report his principal campaign committee files.
Had Jones decided not to run for federal office, there would have been no obligation to report the monies received and spent for testing the waters activity, and the donations made to help pay for the poll would not have counted as contributions.
Organizing a testing the waters committee
An individual may organize a "committee" for testing the waters. An "exploratory committee" or ("testing-the-waters-committee") is not considered a political committee under the Act and is not required to register or report to the FEC.
The name of the exploratory committee and statements made by committee staff must not refer to the individual as a candidate. For example, an exploratory committee could not be called “Samantha Jones for Congress,” which would indicate that Jones had already decided to run for federal office. Instead, the committee could be called “Samantha Jones Congressional Exploratory Committee.”
If the individual decides to run for federal office and becomes a candidate under the Act, then the individual may designate the exploratory committee as the principal campaign committee and change the name of the committee as appropriate.
Special rules for first report
When filing the first report due after registering as a political committee, the principal campaign committee (and other authorized committees of the campaign) must disclose all financial activity that occurred before registration and before the individual became a candidate (including any testing the waters activity), beginning with the first date of activity through the end of the current reporting period.